ALJDEC

99F-032599-MDX · Board of Medical Examiners · 1999-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 1999

APPEARANCES: Robert C. Drye, M.D. appeared on his own behalf; the State was represented by Assistant Attorney General Gordon S. Bueler.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Applicant Robert C. Drye, M.D. brings this appealable agency action protesting the Arizona Board of Medical Examiners’ (“Board”) denial of his application for a license to practice medicine in Arizona. The parties presented evidence and testimony at the hearing. Because Applicant assumed that this tribunal would have access to the Board’s application file and, particularly, letters of reference that Applicant submitted to the Board, the Administrative Law Judge requested that the Board submit a copy of the entire file for the record. The Board did so on October 5, 1999. The Administrative Law Judge has reviewed the Exhibits, testimony, and the application file with special attention to the reference letters. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order affirming the Board’s denial. FINDINGS OF FACT 1. Applicant practiced psychiatry in California and Pennsylvania from the early 1950’s until 1993. In 1991, he voluntarily surrendered his medical license in California. In 1993, he also surrendered his medical license in Pennsylvania. Since that time, Applicant has moved to Arizona where he is a part-time instructor for several programs. He has taught in the Internal Medicine and Family Practice Residency Programs at St. Joseph’s Hospital in Phoenix, as part of the University of Arizona’s medical student clerkships. He has been a clinical instructor with the Sun Health/St. Joseph’s Geriatric Fellowship Program and served as the psychiatric member of a multidisciplinary team for Inpatient Geriatric Consultation Services at St. Joseph’s. He has also been involved in developing psychiatric medical student clerkships for the University of Arizona College of Medicine’s Phoenix Campus. 2. Applicant’s 1991 surrender of his California license was in response to the California regulatory authority’s filing of an Accusation, alleging that Applicant failed to adequately document prescriptions and improperly prescribed medications for eight patients. In April 1991, Applicant admitted that he had “failed to keep accurate records of dispensation and prescription of medications as required by law.” (Exhibit 1, p. 5.) He voluntarily surrendered his license, and the California Board accepted the surrender, dismissing the allegations. (Exhibit 1, p. 6.) 3. In 1993, Applicant entered into a Consent Agreement with the Pennsylvania Board of Medicine. In that Agreement, Applicant admitted that he had voluntarily surrendered his California license, that he had repeatedly misprescribed controlled substances to three patients, that he had failed to keep adequate records about his examinations and treatment of those three patients, and that he had pleaded guilty and been convicted of state criminal conduct pertaining to his misprescribing activity to the three patients. (Exhibit 2.) As agreed to by Applicant, the Pennsylvania Board found him in violation, accepted voluntary surrender of his license, and precluded Applicant from ever applying for reinstatement. (Exhibit 3.) 4. Applicant testified on his own behalf at the hearing. He stated that he did not prescribe improperly in California and that he was “caught up in the war on drugs” in Pennsylvania. Even though he admitted to improper conduct in both California and Pennsylvania in the consent documents, Exhibits 1 and 2, Applicant shows very little insight into those violations and appears to take no personal responsibility for his actions. Instead, he blames others. He does admit that he knew the consent documents would be on his record and could be used against him. . . . . . . CONCLUSIONS OF LAW 1. Applicant must show that he meets the qualifications for Arizona licensure. Arizona Revised Statutes (A.R.S.) §§ 32-1422 and 32-1427(G). The Board has discretion to deny a license application for any of the reasons listed in A.R.S. § 32-1422(A)(1)-(7). The Board has initially found that grounds for denial of Applicant’s application exist under that statute per subsections (A)(4)--having a professional record showing that an applicant has committed any act that would be grounds for disciplinary action if the applicant were a licensee; and (A)(5)--having a professional record showing that an applicant has had a license to practice medicine refused, revoked, suspended, or restricted by any jurisdiction for reasons relating to the ability to safely practice medicine. 2. The Board has grounds to deny Applicant a license to practice medicine in Arizona under §32-1422(A)(4), but not under §32-1422(A)(5). Subsection (A)(5) requires either a prior disciplinary action (revocation, suspension, or restriction of license) or denial of an application. Yet, Applicant has two voluntary surrenders. These are not disciplinary actions. Even though the Pennsylvania Board found violations, it accepted a voluntary surrender. Therefore, none of the prerequisites for denial under subsection (A)(5) are present in this case. But, again, grounds exist under §32-1422(A)(4). 3. The evidence of record supports a conclusion that Applicant has committed conduct, by his own admission, that would be grounds for discipline by the Board. 4. The issue remains whether the Board should exercise its discretion to grant licensure even though there are grounds for denial. A.R.S. §32-1422(C) provides that when the Board finds that an applicant has committed conduct that would be grounds for disciplinary action, the Board shall determine if the problems have been corrected and resolved. If the problems have not been corrected and resolved, the statute requires the Board to determine whether mitigating circumstances exist that prevent resolution of the problems. 5. Applicant’s evidence, including the reference letters he submitted to the Board, does not address any attempts by Applicant to correct and resolve the problems that led to his two license surrenders. Until Applicant quits denying the improper conduct that he admitted to in writing, he will not be able to correct it. Applicant has not shown that he has addressed the specific problems for which he surrendered his licenses. RECOMMENDED ORDER In consideration of the findings and conclusions above, IT IS RECOMMENDED that the Arizona Board of Medical Examiners uphold its denial of Robert Caldwell Drye’s January 1998 application for licensure to practice medicine in Arizona.

Done this 29th day of October 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of October 1999, to:

Claudia Foutz, Executive Director Arizona Board of Medical Examiners 1651 East Morten, #210 Phoenix, AZ 85020

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826